Dietman v Karpany

Case [2023] SASCA 52

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DIETMAN v KARPANY

[2023] SASCA 52

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

25 May 2023

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - NATIVE TITLE - PROOF AND EVIDENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES

PRIMARY INDUSTRY - FISH - SHELLFISH - ABALONE

The appellant (a public officer of the Department of Primary Industries and Regions South Australia and the Informant in these proceedings) appeals against the decision of a magistrate acquitting the respondent of two counts of possession of an aquatic resource of a prescribed class in contravention of s 72(2)(c) of the Fisheries Management Act 2007 (SA).

At trial, the respondent admitted the essential elements of the offences as alleged but sought to defend the charges by relying upon a native title right to fish for abalone under s 211(2) of the Native Title Act 1993 (Cth). The appellant accepted that if s 211(2) of the Native Title Act operated in respect of the respondent’s conduct, then the prohibition in s 72(2)(c) of the Fisheries Management Act had no application in relation to that conduct. 

Both parties accepted that the respondent carried an evidential onus as to the conditions necessary for the operation of s 211(2), but there was a dispute as to which party carried the ultimate or persuasive onus in relation to that section.

The Magistrate found that the respondent had discharged his evidentiary onus, but that the evidence was not sufficient for the respondent to establish the operation of s 211(2) on the balance of probabilities. His Honour also held that if the prosecution bore the persuasive onus to negate the operation of s 211(2) beyond reasonable doubt, it had not done so.

The Magistrate held that the appellant bore the persuasive onus to disprove the operation of s 211(2) beyond reasonable doubt; and that because the appellant had not done so, the respondent was not guilty on both counts.  

The appellant appeals the respondent’s acquittals on the basis that the Magistrate erred in holding that the appellant bore the persuasive onus to disprove the conditions for the operation of s 211(2) beyond reasonable doubt.

Held (per the Court), allowing the appeal:

1.The respondent bore the persuasive onus in relation to the conditions necessary to establish the operation of s 211(2), and was required to prove these matters on the balance of probabilities. On the findings of the Magistrate, he did not do so.

Acts Interpretation Act 1954 (Qld) s 36; Commonwealth of Australia Constitution Act 1900 (Cth) ss 92, 109; Criminal Procedure Act 1921 (SA) s 56; Fisheries Act 1994 (Qld) ss 14, 84; Fisheries Management Act 1994 (NSW); Fisheries Management Act 2007 (SA) s 72; Judiciary Act 1903 (Cth) ss 79, 80; Justices Act 1886 (Qld) s 76; Magistrates (Summary Proceedings) Act 1975 (Vic) s 168; Native Title Act 1993 (Cth) ss 211,…

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Dietman v Karpany [2023] SASCA 52
Case
[2023] SASCA 52
Decision Date

CaseChat Overview and Summary

The appellant appealed the respondent's acquittals on Counts 3 and 4 of charges under the *Fisheries Management Act*. The dispute centred on whether the Magistrate erred in finding that the appellant bore the persuasive onus to disprove the conditions for the operation of s 211(2) of the *Native Title Act* beyond reasonable doubt. The factual background involved the respondent, a self-identified Narungga man, being found in possession of 153 abalone, many of which were undersized. The respondent claimed to be exercising his native title rights by fishing for non-commercial purposes.

The legal issue before the court was who bore the persuasive onus of proof regarding the conditions for the native title defence under s 211(2) of the *Native Title Act* in criminal proceedings alleging contraventions of the *Fisheries Management Act*. Specifically, the court had to determine whether the prosecution was required to disprove the elements of the defence beyond reasonable doubt, or if the respondent was required to establish them on the balance of probabilities.

The Magistrate had concluded that the persuasive onus lay with the prosecution, reasoning that it was appropriate to be cautious in interpreting s 211 in a way that would deprive a defendant of a defence intended to protect fishing rights. The Magistrate noted the lack of clear guidance in the legislation or authorities and, guided by a sense of fairness, placed the onus on the prosecution. The appellant argued that this approach was erroneous. The Full Court acknowledged that while the prosecution had established the basic elements of the offence, the respondent had not discharged the evidentiary onus in relation to the s 211(2) defence, and the outcome depended on the allocation of the persuasive onus.

The Full Court found that the Magistrate had erred in placing the persuasive onus on the prosecution. The Court held that the conditions for the operation of s 211(2) of the *Native Title Act* were matters that the defendant must establish on the balance of probabilities. As the respondent had not established these conditions on the balance of probabilities, the defence under s 211(2) was not made out. Consequently, the appeal was allowed, and the acquittals on Counts 3 and 4 were set aside.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals the respondent’s acquittals on Counts 3 and 4 on the basis that the Magistrate erred in holding that the appellant bore the persuasive onus to disprove the conditions for the operation of s 211(2) beyond reasonable doubt. Factual background For the reasons outlined, this appeal turns upon the issue of who bore the persuasive onus in relation to the operation of s 211(2) of the Native Title Act in the context of criminal proceedings alleging contraventions of s 72(2)(c) of the Fisheries Management Act. That is a legal issue that does not require any consideration of the factual issues that arose at trial. The summary of the factual background which follows is intended merely to provide some context for the legal analysis which follows. On the afternoon of 7 March 2017, the respondent and his two co-defendants below (Mr Power and Mr Bilney) were in the water at Cockle Beach, Yorke Peninsula. The area is acknowledged to be within the traditional land and waters of the Narungga people. The respondent and Mr Power are Narungga men, and Mr Bilney’s wife is a Narungga woman. The three men were observed by fisheries officers to be snorkelling in the water for about three hours. At around 6.00pm, the respondent emerged from the water, carrying snorkelling equipment and a catch bag containing abalone. Mr Power and Mr Bilney soon also emerged from the water. They were carrying snorkelling equipment, and whilst not carrying catch bags, two further catch bags containing abalone were later located in the water in the area where they had been snorkelling. There was no dispute that the respondent was in possession of the first catch bag, and that it contained 153 greenlip abalone, of which 118 were undersized. In discussions with the fisheries officers after he emerged from the water, he claimed that he was exercising his native title rights as a Narungga man by fishing and taking abalone for non-commercial purposes. Each of the three men were charged with offences under s 72(2)(c) of the Fisheries Management Act relating to their possession of the abalone in the three catch bags. Counts 1 and 2 alleged the joint possession by the three defendants of the abalone in all three catch bags, and were not made out. Counts 3 and 4 charged the respondent with possession of the abalone in the first catch bag, and Counts 5 to 8 contained equivalent allegations against Mr Power and Mr Bilney in relation to the abalone in the second and third catch bags. Mr Power and Mr Bilney did not raise any native title ‘defence’ and were convicted of Counts 5 and 6, and Counts 7 and 8 respectively. Whilst acknowledging that the basic elements of the s 72(2)(c) offences the subject of Counts 3 and 4 had been made out, the respondent relied upon a native title ‘defence’ under s 211(2) of the Native Title Act. In support of that defence, the respondent gave evidence about his own experiences fishing as a Narungga man, what he had been taught about fishing by his father, and their custom of sharing a catch with his family. While he did not give any broader evidence as to the existence or content of Nurungga laws or customs in relation to fishing for abalone, he did adduce some (albeit relatively general) evidence about these matters from an anthropologist, Mr Graham.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, the difficulty in the present case arises by reason of the matters required to be addressed by ss 211(2)(a) and (b). On the Magistrate’s findings, while the prosecution did not negative these matters beyond reasonable doubt, the defendant did not establish them on the balance of probabilities. It was for this reason that the outcome on Counts 3 and 4 fell to determined according to which party carried the persuasive onus to establish those matters.The decision below Having acknowledged that it was necessary to resolve the issue of which party carried the persuasive onus as to the operation of the native title ‘defence’ under s 211(2), the Magistrate dealt with the issue relatively succinctly. His Honour noted that he was dealing with criminal proceedings in which the potential consequences for the respondent were serious. He also noted the ordinary situation in criminal proceedings where, a defendant having properly raised a defence,[9] the prosecution was then required to not only prove all of the positive elements of the offence beyond reasonable doubt, but also negative any defences that had been raised to the same standard.[9] That is, having discharged his evidential onus. The Magistrate acknowledged the existence of numerous observations in the authorities as to who carried the persuasive onus in establishing a native title ‘defence’ in the context of a fishing offence. His Honour referred in particular to the summary of the relevant authorities and principles in the recent decision of the Full Court in Wanganeen v Dietman,[10] a decision which treated, and left, the issue as unresolved in respect of prosecutions under the Fisheries Management Act.[10] Wanganeen v Dietman (2021) 139 SASR 170. The Magistrate accepted that there was no express guidance on the issue of onus in s 211 of the Native Title Act itself. In his Honour’s view, it was appropriate to be cautious before arriving at an interpretation of s 211 that would deprive a defendant of a defence based upon the freedom to exercise fishing rights intended to be protected by that section. Bearing in mind that those holding native title rights and interests were often under-privileged members of the community, and in the absence of any clear guidance in the authorities, or in the legislation itself, the Magistrate said that his instinct for fairness made it appropriate to proceed on the basis that the persuasive onus lay on the prosecution. As the prosecution had not negatived the operation of s 211(2) beyond reasonable doubt, the respondent was not guilty of Counts 3 and 4.The issue on appeal As mentioned, the issue on appeal is which party carried the persuasive onus in relation to the operation of the native title ‘defence’ in s 211(2) of the Native Title Act. There are several authorities which have addressed the issue of the onus in relation to a native title ‘defence’ in the context of fishing offences such as those provided for by the Fisheries Management Act. However, as will be seen, none of these authorities definitively resolves the issue before this Court. Several have included observations about the onus, but often in the context of confirming that the defendant carries the evidentiary onus or without clearly distinguishing between the evidentiary and persuasive onus. And the observations that have been made have generally been in the context of an assumed or agreed position, rather than a conclusion based upon an analysis of the principles governing the allocation of the persuasive onus in criminal proceedings.

Ratio Decidendi

Legal Principle Established

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